CHAPTER 8
MISAPPROPRIATION:
SUBSTANTIALITY OF THE TAKING
The Copyright Act of 1976 does not define
infringement. It provides a list of
exclusive rights that the copyright owner holds[1] and declares anyone who
violates any of those rights to be an infringer.[2] Neither does the Act define or even mention
plagiarism. Plagiarism, of course,
interferes with the copyright owner's exclusive rights to copy and distribute
the work. Although previous chapters
have considered these and other aspects of plagiarism and infringement, several
questions deserve special attention as they apply to music.
The owner has a legal cause of action only when the
portion copied is protectable:
In no case does copyright protection for an original
work of authorship extend to any idea, procedure, process, system, method of
operation, concept, principle, or discovery, regardless of the form in which it
is described, explained, illustrated, or embodied in such work.[3]
Copyright protects only
the author's expression, not his idea.
The idea-expression dichotomy, now codified by the passage quoted above,
presents particularly difficult conceptual problems in music. Do ideas exist in music, or is music pure
expression thus rendering the dichotomy a nullity? If musical ideas do exist, what is their nature and can they be
separated from expression? The court
has generated these doctrines in cases involving literature and plastic arts,
genres which at least accept the terminology of the dichotomy if not the
premise. The court has yet to grapple
seriously with the application of this doctrine to music.
This chapter examines the issue of protectability from
philosophical, economic, and aesthetic perspectives. The philosophical approach to plagiarism concerns the source and
proper scope of the author's rights of ownership; it looks at justifications
for the author's monopoly and for the appropriation of his work by others. The economic approach asks whether the
author has been harmed by the alleged infringement in a way that warrants a
remedy. The aesthetic approach looks at
the nature of music; it asks how the idea-expression dichotomy can be stated in
musical terms. It asks also how the
philosophical and economic questions can be decided with reference to music.
Even if the philosophical, economic, and aesthetic
questions could yield satisfactory, non-contradictory answers, which they
cannot, more would be needed. The law
must accommodate these three viewpoints in one policy. The law must balance competing goals and
relative harms along with the practical concerns of costs in implementing the
policy. This policy question has
already been translated into law, but it bears continued scrutiny in light of
its constitutional purpose: to promote progress in the arts.[4]
The Philosophical Question
The utilitarian theory of
copyright protection provides an entirely negative means of protecting artists,
the grant of a monopoly.[5] But the theory also provides the primary
justification: the public wants to encourage the production of art and other
intellectual creations. Only by
temporarily depriving the public of certain rights and investing those rights
in the artist will the law encourage individuals to create new works.
The line between what belongs to the author and what
belongs to the public, though, cannot be easily drawn. The artist has learned his craft from the
examples of others, and his understanding reflects the contributions made by
other artists to the public's body of knowledge. So, part of the artist's new work may draw from sources already
in the public domain. Also, part of the
artist's new work is conveyed in a way that surrenders control; the artist
cannot retain rights in the knowledge he imparts. Therefore, the artist commits some aspects of his work to the
public domain upon publication.
Hegel concluded that plagiarism could not be defined or
determined by any precise principle.
The product of intellectual labors becomes an external thing that the
perceiver may make his own and communicate to others in his own way.[6] The purchaser of an intellectual work
receives the full use and benefit of a single copy, but without the right to
duplicate that copy. The author retains
the sole right, a special right, to control duplication.[7] What, then, constitutes the full use and
benefit of a single copy? The purpose
of creating an intellectual work is for people other than the author to
understand it, for them to make it the possession of their own ideas and
memory.[8] Therefore, those who purchase the single
copy or understand the author's communication gain a capital asset through
learning; they may regard that asset as their own and rightfully reproduce that
learning in their own books.[9] Hegel explained:
Now to what extent does
the new form which turns up when something is expressed again and again
transform the available stock of knowledge, and in particular the thoughts of
others who still retain external
property in those intellectual productions of theirs, into a private mental
property of the individual reproducer and thereby give him or fail to give him
the right to make them his external
property as well? To what extent is
such repetition of another's material in one's book a plagiarism? There is no precise principle of
determination available to answer these questions, and therefore they cannot be
finally settled either in principle or by positive legislation. Hence plagiarism would have to be a matter
of honour and be held in check by honour.[10]
Hegel knew of few plagiarism claims in his day and
suspected that honor might have succeeded in abolishing plagiarism. Considering the number of musical and
literary works registered with the Copyright Office each year, plagiarism
claims may be seen today as quite infrequent.
Honor has succeeded at least to some extent. The public views plagiarism as a serious breach of ethics. Still, the number of infringement claims
successfully prosecuted by plaintiffs represents a relatively small fraction of
the claims filed, not counting settlements.
The dearth of successful claims does not seem to result from public
indifference.
Hegel also considered the possibility that the public
would accept the most trivial changes as badges of originality, thereby
virtually eliminating a claimant's chances for successful prosecution.[11] Plagiarism enthusiasts seem to subscribe to
this notion of a public incapable of detecting similarities and thus ignorant
of infringement.
Public attitudes toward various forms of infringement
seem rather mixed. Petty piracies earn
little disapproval; the ease with which copyrighted materials can be duplicated
tempts almost everyone. Plagiarism is
considered more serious, perhaps because of the magnitude of the gain if the
plagiarist is successful or perhaps because the plagiarist has sought to make
fools of the public. Thus, a jury is
probably prepared to find in favor of a plaintiff who presents a good case. On the other hand, if the jury too blithely
labels similarities as plagiarism, the utilitarian purpose of copyright will be
seriously degraded. The plaintiff who
succeeds where he should not is a plagiarist extraordinaire. Hegel seems
right in recognizing that the public accepts minute changes as indicia of
originality, but this might result not from trivial distinctions but from more
subtle and intellectually astute ones.
The question is whether the public discerns originality in the details
or fails to detect abstract similarities.
Perhaps the dullest minds perceive the greatest number of plagiarisms.
The philosophical approach leaves many questions
unanswered. But it informs the inquiry,
pointing out that the author's expressions owe something to prior works and
convey something to the public domain.
Some aspects of the work must be unprotectable and some uses of
protectable expressions must be fair uses and not infringements.
The Economic Question
Properly conceived, the economic
question concerns the protectability of an author's work. It balances the rights of the author with
those of the public in order to promote the creation of artistic works. It addresses the Constitution's expressly
utilitarian purpose for granting copyright protections.[12]
Economics also helps to determine the scope of
"fair use," the right of others to use the author's expression in a
reasonable manner. One of the factors
to be considered in determining fair use is "the effect of the use upon
the potential market for or value of the copyright work."[13] This has been labeled the "demand
test," because it concerns the effect of the accused work on the public
demand for the original work.[14]
Lay Listener Test
The trier of fact's ability to
discern appropriate distinctions determines the utility of the lay audience
test. Infringement must be based on a
resemblance noticeable to the average hearer.[15] The lay listener test requires an
appropriation to be perceptible by the music loving public.[16] Commentators have compared this approach to
the "reasonable man" standard applied to other areas of law, but the
analogy fails in one essential respect:
[I]n those other areas (e.g., torts, trusts, corporations,
criminal law) the trier is asked to compare the defendant's actions with what
the trier's own (presumably reasonably prudent) actions would be under the same
circumstances. Thus in a negligence
case, the trier puts himself into the defendant's shoes, not the shoes of an
"ordinary observer" of the accident.
Contrast this with the [average lay observer test], where the essential
question is: did the defendant copy from plaintiff? Here the trier is not equipped to put himself into the
defendant's shoes. He cannot
meaningfully answer whether, if he were in the defendant's shoes, he would have
been constrained to copy from the plaintiff in order to achieve the given
result.[17]
Negligence standards seek primarily to compensate
victims and to distribute efficiently the true costs of accidents, partly by
defining foreseeability in economic terms.
Michael Sitzer argues that the lay listener test should be employed to
promote this kind of efficiency in copyright law by going directly to the
economic-utilitarian question.[18] The Constitution's utilitarian goal is not
served by construing protection too broadly, allowing an author to preempt
further expression, or too narrowly, allowing a subsequent author to deprive
the original author of the fruits of his labor. The lay listener is asked to judge economic rather than artistic
value.
Arnstein v.
Porter explained the rationale for the lay listener test:
The plaintiff's legally protected interest is not, as
such, his reputation as a musician but his interest in the potential financial
returns from his compositions which derive from the lay public's approbation of
his efforts. The question, therefore,
is whether defendant took from plaintiff's works so much of what is pleasing to
the ears of lay listeners, who comprise the audience for whom such popular
music is composed, that defendant wrongfully appropriated something which
belongs to plaintiff.[19]
The test relies strongly
on an economic philosophy of copyright law.
It asks whether the lay audience would find the works so similar that a
purchaser might be motivated to buy the defendant's work instead of the
plaintiff's.
The lay audience test has moved beyond the question of
protectability. It now embraces the
other part of Arnstein's bifurcation:
the question of substantial similarities as that term relates to the existence
of copying.[20] The lay audience test concerns not only the
scope of plaintiff's protection; it also concerns whether the similarities are
sufficient to allow an inference of copying.
Thus, courts have demonstrated a tendency to expand the test beyond the
economic aspects of copyright, allowing it to intrude on the musical question
as well. This doctrinal imprecision has
one rather imperfect benefit: whereas the bifurcated test encourages the trier
of fact to separate the intellectual and intuitive responses to music, the lay
audience test at least asks the trier of fact to listen as he analyzes.
Intended Audience Test
A recent change in the law refines
the economic question, but it also raises serious concerns about the expansion
of the lay audience test beyond the economic question. Dawson
v. Hinshaw Music[21] mandates a change in
the lay audience test, calling for the trier of fact to apply an "intended
audience" test. The new test,
which purports to be merely a more accurate interpretation of the old Arnstein test, addresses the question of
protectability more efficiently. If the
jury applies a test based on the public's perception, and the public cannot
perceive the distinctions used by purchasers of a particular type of music to
determine originality, then those purchasers might be deprived of new works of
art that they consider original.
A trier of fact, of course, cannot apply the intended
audience test by referring to his own visceral reactions unless he belongs to
that intended audience. Litigants must
present some evidence to the jury in order to inform them as to how the
intended audience would judge the similarities at issue. The evidentiary problems presented by this
inquiry more nearly approximate those of trademark law, which judges
similarities according to "likelihood of confusion." One primary problem concerns foundation: who
is qualified to testify on the tastes and opinions of a certain group of
people? Trademark cases have effectively
resorted to opinion surveys, which provide the surveyor with objective data to
support his testimony. The surveyor
then appears as an expert witness to interpret the data for the jury. Survey methodology, however, does not easily
translate into the musical arena.
Because the reactions of a representative sample cannot
be put before the jury, the jury can either rely on a non-representative sample
or on a music expert to determine the reactions of the intended audience. Both parties could probably produce
aficionados of the style in question to testify in their favor. Music experts might help the trier of fact
slightly more by suggesting a musical basis for the distinctions that the
intended audience would hear and explaining the stylistic traits that attract a
particular audience. In either case,
the trier of fact will be asked to suppress his own perceptions and to listen
as he supposes someone else might.
The myth that music divides into "kinds,"
subject to different analyses, different principles, and different methods of
perception, will be bolstered by this approach. Although counsel already tend to exclude musically sophisticated
people from the jury, a jury composed of those least confident in their own
perceptive abilities may be more susceptible to manipulation under the intended
audience test. Such juries will be more
likely to believe that different kinds of music adhere to different principles.[22] While an unsophisticated listener may
believe his own ears under the lay listener test, he is more likely to believe
that others possess unusual auditory powers under the intended audience test.
The intended audience test does not improve on another
primary failing of the lay audience test.
The inquiry still tends to focus more on similarities in and of
themselves than on copying. The lay ear
is employed in the intended audience test to assess music's appeal in a highly
subjective way. Whereas the lay
audience test allowed the jury to discount similarities that they could not
hear, the intended audience test allows the jury to deem unperceived
similarities to be substantial.[23]
As a purely economic test, the intended audience
approach represents an improvement. The
test changes the focus from music's general appeal to its specific appeal to a
definable audience. The test might be
further refined along these lines to address the reactions of the intended
purchaser rather than the intended audience, thus utilizing the test's
strengths to their best advantage.
Terminology that focuses on the "audience" implies that the
test answers the aesthetic question, which, as currently constructed, it
clearly does not. An inquiry into the
similarities between two specific works is simply too anecdotal to be
classified as based on aesthetics. The
jury may apply its own aesthetic measures to similarities through the lay
audience test, but the evidence presented to the jury is insufficient to allow
them to reach conclusions regarding the aesthetic judgments of a foreign
"intended" audience. The
intended audience test more effectively addresses the economic question,
because purchasing habits provide the trier of fact with a greater amount of
objective data.
Although the intended audience test seems to improve
the lay audience test, from a practical perspective it is unlikely to generate
a better result. The intended audience
test seeks one primary benefit: preventing the jury from imposing its own blunt
standards on the more discerning appetites of those familiar with the
subtleties of a particular style. But
if the intended audience test spills over into the musical question, the jury
may be encouraged to trust analysis indiscriminately‑-without testing it
aurally. That will further widen the
gap between the intellectual and intuitive approaches to music, because the
jury will be unable to apply its own intuition. Instead, the jury will have to wait for evidence on the intuitive
responses of others.
Thus, the intended audience test should not intrude on
the question of whether substantial similarities warrant an inference of
copying. The defendant either created
his work independently or copied it, and the fact of plagiarism does not change
according to the standards of a particular audience. Similarities represent only the circumstantial indicator of
copying, not the ultimate question. The
trier of fact needs to apply his own aural perception in an intelligent
assessment of those similarities. The
test might still be useful to the question of protectability, where the
intended audience can assess originality.
Or, the test might be best confined to the question of damages. The trier of fact must define the intended
audience in order to address the economic impact of infringement.
Effects of the Tests on
Expert Testimony
Analysis of music cannot be
separated from listening. Yet the
bifurcation of infringement tests has promoted the misconception of a dichotomy
between listening and the expert's intellectual approach. As a result, the trier of fact is encouraged
to listen to the music at one point and to listen to the expert at
another. The trier of fact must combine
these two processes if it is to assess similarities accurately. Music analysis should not substitute for
listening; analysis informs listening and listening informs analysis.
The proper application of a lay observer or intended
audience test should flow from this understanding of the purpose of
analysis. Unless the trier of fact
happens to be a trained musician, the lay observer aspect is inherent in the
process. The trier of fact has no other
powers to employ. Listening engages the
mind in a complex process. It
challenges the faculties of experts, intended audiences, and lay observers alike. The trier of fact should not be asked to
sacrifice its own powers of observation to speculation concerning the powers of
others. Rather, music experts should
help the judge or jury member to apply his full powers of perception toward an
understanding of the compositional process, musical constructions, and
similarities in order to assess the possible existence of copying. If copying exists, the trier of fact might
then allow the tastes of the intended audience to inform its judgments on the
economic question of protectability.
Arguments in favor of the intended audience test have
been used to advance a radical concept of expert testimony, one seriously at
odds with an informed approach to music.
Sitzer posits:
Application of a
bifurcated Arnstein test,
supplemented by the use of expert testimony to identify the audience and to
explain audience reactions, results in a successful fusion of expert testimony
with the audience test.[24]
The Dawson
court cites Sitzer's article, noting the possibility that the lay observer may
lack the expertise necessary to judge similarities.[25] But Sitzer holds a curious view on musical
expertise:
Purchasers of many
copyrighted works could be seen as experts.
For example, the fans of particular forms of music could be considered
experts in their respective fields of interest. . . . In practice, then, an audience test may
implicitly involve some of the same technical dissection demanded of experts.[26]
Sitzer thus characterizes music as a rather simple
phenomenon, mastered by anyone sufficiently interested to purchase copies and
listen. He denies any role for the
music theorist at trial and discounts entirely the intellectual approach to
music. Sitzer's concept of expertise
falls far short of the level of knowledge and training required to produce a
forensic analysis. According to Sitzer,
dissection and analysis require no training, not even pencil and paper. Sitzer equates analysis with appreciation
and imputes technical expertise to fans.
Further, Sitzer's approach explains music as divisible into
"kinds," and, still less accurately, as only divisible into kinds.
According to his concept, analysis ends when the music has been
categorized as belonging to a certain style.
The intended audience test should illuminate the
economic question, not the musical one.
Sitzer goes too far: he suggests that the intended audience test alone
can answer both questions, and he would call not music experts but economic
experts. This approach ignores the
question of copying entirely and renders independent creation irrelevant.
The Aesthetic Question
Aesthetics concerns the nature of
art and the place of an individual musical work within the total realm of
music. Applied to the question of
infringement, aesthetics addresses how a composer achieves originality in music
and how common musical elements might be employed in new artistic ways. Aesthetics is the proper approach to
defining the idea-expression dichotomy in music. Unless the line separating protectable expression from
unprotectable idea is drawn with reference to the art of music, the line will
fail in its application.
Rationales for the
Idea-Expression Dichotomy
One must understand the rationale
behind the idea-expression dichotomy before trying to apply the dichotomy to
music. The dichotomy will not yield to
purely musical considerations, because it concerns larger and more fundamental
issues. The demands of music and law
must be reconciled.
The
Idea-Expression Dichotomy and the First Amendment
The monopoly granted to an author
conflicts with the first amendment principle of free expression.[27] Copyright law limits what subsequent authors
can write by depriving them of unlimited use of copyrighted materials. Courts and commentators have attempted to
reconcile this conflict and to justify copyright law as beneficial to first
amendment principles.[28] Professor Melville Nimmer, author of a
respected treatise on copyright law, suggested that the limited monopolies
granted to authors actually encourage free speech by providing economic
incentives for the author. Nimmer's argument
posits that restriction of copying does not hinder first amendment ideals,
because the marketplace of ideas does not suffer when it is deprived only of
repetition.[29] Further, because ideas do not receive legal
protection, the marketplace has free access to the substance underlying an
author's works. Copyright law restricts
only duplication of an author's particular expression of those ideas.[30]
This belief has profoundly affected the course of
copyright jurisprudence. In particular,
courts have used the general congruence between copyright and the first
amendment to support a practice of ignoring the first amendment when
interpreting the copyright law.
Consequently, even when first amendment arguments have been placed
directly before them, courts have held that no conflict exists between the
first amendment and copyright.[31]
Alfred Yen argues that
copyright law may have a chilling effect on free expression when, because of
the law's ambiguous scope, authors forego their first amendment freedoms for
fear of being prosecuted.[32]
Few aspects of copyright law defy understanding so much
as the idea-expression dichotomy. The
dividing line is difficult to draw in all arts, perhaps particularly so in the
most abstract art‑-music. Few
composers, if any, can confidently discern that line. The growing practice of consulting plagiarism experts prior to
publication of popular and, especially, commercial music may reflect this
chilling effect.
Limits of
Protectability in Intellectual Property
All forms of intellectual property‑-copyright,
trademark, and patent‑-adhere to certain limits of protectability. The balance struck between protecting
individual and public interests in each of these various forms of property
provides insight into the guiding principle that must be applied to music. Some analogies can be drawn as well among
the forms of intellectual property.
Patents
Patent law extends protection only
to useful items.[33] An inventor may not claim ownership of a
scientific principle. The historic case
of O'Reilly v. Morse[34] provides an
example. In 1848, Samuel Morse received
a patent on his electro-magnetic telegraph.
The eighth claim of his patent application read:
I do not propose to limit myself to the specific
machinery or parts of machinery described in the foregoing specification and
claims; the essence of my invention being the use of the motive power of the
electric or galvanic current, which I call electro-magnetism, however
developed, for marking or printing intelligible characters, signs or letters at
any distance, being a new application of that power, of which I claim to be the
first inventor or discover.[35]
Henry O'Reilly constructed a telegraph line between
Louisville and Nashville using instruments and means which were substantially
those patented by Morse.[36] O'Reilly claimed as part of his defense that
Morse's patent was void on its face, because Morse's claim was too broad.[37] The U.S. Supreme Court ruled that the patent
was not null and void but that Morse's eighth claim exceeded the scope of
patent protection. Justice Taney wrote:
It is impossible to misunderstand the extent of this
claim. [Morse] claims the exclusive
right to every improvement where the motive power is the electric or galvanic
current, and the result is the marking or printing intelligible characters,
signs or letters at a distance.
If this claim can be maintained, it matters not by what
process or machinery the result is accomplished. For aught that we now know some future inventor, in the onward
march of science, may discover a mode of writing or printing at a distance by
means of the electric or galvanic current, without using any part of the
process or combination set forth in the plaintiff's specification. His invention may be less complicated‑-less
liable to get out of order‑-less expensive in construction, and in its
operation. But yet if it is covered by
this patent the inventor could not use it, nor the public have the benefit of
it without the permission of this patentee.[38]
Had Morse's claim been upheld, his monopoly would have
extended beyond his useful contribution to science, inhibited further
developments, and failed to promote the Constitution's utilitarian goal.
Trademark
Trademark law allows an individual
to appropriate a symbol or word, whether pre-existing or not, and apply it to a
product. The symbol may be descriptive
or fanciful. Trademark law grants a
true monopoly that does not expire so long as the mark denotes the source of
the product. Infringement entails
commercial use of the mark in a manner likely to confuse or deceive the public
regarding the source of the product.[39] The key to a valid trademark is its use in
conjunction with goods or services to denote the source, not merely the nature,
of those goods or services.[40] A mark that becomes the common name of a
product rather than the brand name loses its legal protection.[41]
"Kleenex" is an example of a fanciful mark, a
word coined by the manufacturer.
Applied to the product, it denotes a facial tissue whose source is a
particular manufacturer, although most people might not remember that the
manufacturer is the Kimberly-Clark Corporation. As long as "Kleenex" continues to distinguish facial
tissue made by Kimberly-Clark from that made by Scott Paper, the trademark will
be valid. The monopoly granted to
Kimberly-Clark deprives the public of nothing.
However, if the public comes to use the word "Kleenex" to describe
facial tissue made by any manufacturer, in other words if the word becomes the
generic name of the product, the trademark can be canceled. Allowing the monopoly to continue would
deprive other manufacturers of the ability to call their product by the term
the public recognizes, thus damaging the public. "Aspirin," for example, began as a brand name and
became generic. Another pharmaceutical
company would have great difficulty selling its brand of aspirin if it were
precluded from using that term.
Thus, trademark law balances the manufacturer's need to
build its reputation and clientele through exclusive use of a trademark with
the public's need to facilitate entry into the market of new products. The law protects the property of the
manufacturer while ensuring that the public is not misled concerning the source
of the products it buys.
Copyright
The balancing of public and
individual interests becomes more difficult in copyright law. Baker
v. Selden[42] presented what might be
best described as a hybrid patent-copyright question, but it is generally
deemed the origin of the idea-expression dichotomy.[43] Selden wrote a book entitled "Selden's
Condensed Ledger, or Bookkeeping Simplified" in 1859. The book contained an essay on Selden's
bookkeeping system and blank forms, which consisted merely of ruled lines and
headings, for using the system.[44] Baker then produced a similar bookkeeping
plan, but he arranged the columns and headings differently.[45]
The issue was whether Baker's forms infringed Selden's
work. Justice Bradley wrote the Supreme
Court decision:
Where the truths of a science or the methods of an art
are the common property of the whole world, any author has the right to express
the one, or explain and use the other, in his own way. . . .[46]
Copyright could not
extend to the subject of Selden's book, the idea behind the work. Selden asserted a copyright that included
the subject, not merely his explanation of the subject, and to that extent his
claim was not upheld.[47]
The rationale of behind the scope of protection
afforded all kinds of intellectual property seems to be that the public retains
ownership of some aspects‑-those that the individual did not create and
those that the public requires for future development. Regarding those aspects of intellectual
property, the public will not yield title to the individual. The "idea" in copyright law seems
to include that which pre-exists the work and, therefore, that to which the
public has a superior claim. It also
seems to include the tools required by any subsequent author to produce another
work and to retain sufficient freedom of original expression.
The Social Value of
Artistic Creation
The above discussion demonstrates how
the public's interest in retaining social wealth drives the limitations of the
scope of copyright protection. A
corresponding public interest is creation of wealth through the promotion of
artistic endeavors.
One school of thought suggests that Locke's labor
theory accounts for the property rights inhering in artistic creation. Locke posited a common store theory in which
a landowner appropriates to himself that which he labors on effectively. God grants goods in common to mankind, but
they cannot be enjoyed in their natural state.
Man's labor converts these goods into a useful form; it adds value to
them by allowing them to be enjoyed by a human being.[48]
[H]e who appropriates
land to himself by his labor does not lessen but increase the common stock of
mankind; for the provisions serving to the support of human life produced by
one acre of enclosed and cultivated land are‑-to speak much within
compass‑-ten times more than those which are yielded by an acre of land
of an equal richness lying waste in common.
And therefore he that enclosed land, and has a greater plenty of the
conveniences of life from ten acres than he could have from a hundred left to
nature, may truly be said to give ninety acres to mankind.[49]
Thus, granting property
rights in goods procured through labor increases the common stock of mankind
and fulfills the utilitarian principle.[50]
The laborer owns only the amount of land that he can
keep productive. If he takes more, he
commits waste. This non-waste condition
prevents a laborer from accumulating so much property that some is destroyed
without being used.[51]
The possibility exists, however, that works of art may
be created with little effort.[52] Further, Justin Hughes suggests that no good
example of the non-waste requirement exists in intellectual property.[53] Therefore, a second school of thought rests
on Locke's labor-desert theory, which recognizes the social value created by
the author's contribution. The theory
posits that it is not the fact of labor but the resulting contribution to
social wealth that deserves reward and justifies the author's rights.[54]
On the other hand, Hughes notes that the labor-desert
theory fails to account for those who copyright works and refuse to publish
them. They gain legal protections while
depriving the public of its benefit.[55] Although this problem seems partially
answered by the fact that the author in such cases gains few rewards, the
copyright does impose some limitations on the public.
A rule-utilitarian theory may reconcile these
problems. This theory would justify the
quid pro quo regardless of the individual facts behind the creation. Even if the artistic creation required no
individual labor or produced no public benefit, the rule itself would be seen
to function sufficiently well that it should be maintained.[56]
Hughes explains the "idea" of copyright law
as representing the first amendment concerns[57] and substitutes
"execution" for "expression" to inject labor into the equation. Idea-expression therefore equates with
idea-execution.[58] Idea is the initial creative step; execution
is the labor necessary to put it in final form.[59] Execution always involves labor; idea may or may not.[60]
The difference, the
uniqueness, and the importance to society is in the execution. The idea of orchestrating Pictures at an Exhibition . . .
is not worth much in itself, nor is the thought of doing a painting of the
front of the Rouen Cathedral basked in sunlight. But each idea has proved to be a foundation for more than one
significant execution.
In these examples the distinction between idea and
execution is drawn at a gross level.
Although the distinction may seem intuitively right, it can be blurred
and redrawn by focusing on different levels of detail. There is not just the idea of orchestrating
a piano piece, but the more detailed idea of using a particular motif in the
third movement, and the even more detailed idea of using a particular percussion
instrument in the forty-seventh stanza of that movement. The achievement in writing fiction or in
composing may be in the execution precisely because each turn of phrase,
musical or literally [sic], is the
result of a creative event.[61]
These theories promote some understanding of the problem,
but they do not provide clear answers.
Hughes admits that the courts often draw the line contrary to the
idea-execution theory. Society may have
a pressing need for copyrighted materials, such as the Zapruder film of the
Kennedy assassination, but those items remain copyrightable.[62]
Applied to music, the idea-execution theory does not
make the idea-expression dichotomy any easier.
Just as all musical elements are expressive, virtually all require
execution. Even if musical ideas may
arrive unbidden, on the "eureka" theory, the ideas cannot be
communicated without substantial execution.
The public obviously does not believe that all of the composer's efforts
deserve reward. For their part,
composers continue to produce new works, suggesting that the utilitarian
principle is not out of balance.
However, if music's many expressive elements were all afforded
protection, numerous works of substantial variety and originality would
infringe prior works. The chilling
effect would have substantial impact on composers. The public shows no indications that it wants to move in this
direction.
Not surprisingly, some commentators suggest that the
idea-expression dichotomy simply does not exist in music.[63] All aspects of music are expressive and yet
all are inseparable from fundamental principles. Courts also admit the extreme difficulties involved when the
doctrine is applied to music.[64] Perhaps idea and expression merge in music;
at the very least, they seem to overlap to large degree.
The Origins of the
Idea-Expression Dichotomy
In 1853, copyright was held to
protect against only literal copying. A
translation of Harriet Beecher Stowe's Uncle
Tom's Cabin did not infringe the original because it used different words.[65] Similarly, in White-Smith Music Publishing Co. v. Apollo Co.,[66] the Supreme Court held
that a work of music was not infringed by the making of a piano roll, because
"the statute has not provided for the protection of the intellectual conception
apart from the thing produced."[67] Protection in both cases was construed too
narrowly. Subsequent legislation
overturned the White-Smith decision,
providing some greater protection for the concept.[68]
The concept cannot be unlimited without erring on the
other side. Judge Learned Hand in Nichols v. Universal Pictures[69] devised the
abstractions test:
Upon any work . . . a
great number of patterns of increasing generality will fit equally well, as
more and more of the incident is left out.[70]
The more concrete aspect
of expression is protected by copyright; but at some level of abstraction,
expression becomes more "idea," to which protection does not extend.[71] Hand's abstractions test rejected the
simpler Stowe method of ignoring the
distinction between abstract idea and concrete expression.[72] This was Hand's first attempt at devising a
solution to the scope of protection:
He turns the question
into one of substantial taking, and for purposes of this test the substance of
a work is chiefly the details and incidents.
The more abstract and general the material the plagiarist takes, the
less substantial is the taking. Where
the boundary is, that is, how abstract or unsubstantial the material taken must
be in order to be beyond the scope of protection, he does not attempt to
say. He concedes that no one has been
able to fix that boundary and doubts whether anyone can. What is a "substantial taking" is
left for resolution in the individual cases.[73]
Hand returned to this question in Sheldon v. Metro-Goldwyn Pictures Corp.[74] He discussed two plays in considerable
detail, noting similarities in the plot and character development. Finding plagiarism, he wrote:
A play may be pirated without using the dialogue. Were it not so, there could be no piracy of
a pantomime . . . yet nobody would deny to pantomime the name of
drama. Speech is only a small part of a
dramatist's means of expression; he draws on all the arts and compounds his
play from words and gestures and scenery and costume and from the very looks of
the actors themselves. . . .
The play is the sequence of the confluents of all these
means, bound together in an inseparable unity.[75]
Thus, even Hand, a prevailing force behind the
idea-expression dichotomy, recognized that all elements of a work of art were
inseparable. Although the dichotomy may
be an essential aspect of copyright law, its necessity does not refute the
great difficulty of distinguishing idea from expression. Courts should approach the issue cautiously,
realizing that individual elements can never be neatly categorized.
Defining the
"Idea" in Music
The problem is brought more
sharply into focus by the difficulty of defining a musical idea[76]. Musicians use the term "idea"
rather freely, not in the sense of distinguishing an idea from expression. Idea denotes a beginning point or motivating
force in music that may take many forms.
Similarity of extra-musical elements, such as dramatic
concepts, might be asserted as similarity of musical idea. But such similarities are not part of the
equation, and the existence or non-existence of extra-musical similarities
proves nothing. Composers do not create
or copy music according to fanciful associations and representations. Music, a non-representational art, adheres
to its own internal principles of organization and expression.[77]
Musicians often characterize the motive, what Reti
viewed as the organic unit in music, as an idea. However, motives function in the foreground where expression seems
most concrete. Motives most often
concern melody, which tends to be the most easily recognized element‑-the
one instinctively afforded the most protection. Nevertheless, the entire musical work may well flow from this
highly expressive aspect.
The organic unit in music offers greater possibilities
for meeting the legal criteria of an idea when it functions in the
background. Schenker's organic unit,
tonality, might be analogous to the common truth or scientific principle to
which copyright cannot extend.[78] However, it fails as a legal idea from other
perspectives. Tonality is so basic
that, if it were the idea, the majority of music would express the same idea. The Ninth Circuit's test requiring first
similarity of idea so often be met as to be meaningless. Further, because tonality infects virtually
all aspects of music, locating the idea in tonality would not help draw the
line between idea and expression.
The courts' references to literary ideas existing in
plot, theme, character, and sequence of events suggest that musical form might
provide the basis for idea.[79] A formal scheme in itself, like sonata form
or theme and variations, is not expressive.
But formal schemes in music tend to be quite flexible; in application
formal schemes might contain more expressive elements than the layman
expects. Paradigm forms exist only in
theory. Further, the form can be
defined only by a thorough analysis of expressive elements‑-manifestations
of tonality, thematic development, repetition, and imitation. Defining form as idea would require the
Ninth Circuit to scrap their intrinsic-extrinsic test, which requires
expression to be judged without benefit of analysis.
Courts have suggested that certain compositional
devices should be considered idea. The Selle jury instructions defined the
melodic sequence as idea.[80] But a sequence develops a presumably
original figure or motive and contains all of the expressive capacity
attributable to melody. In fact,
sequences tend to be one of the few expressive elements capable of liberating
themselves from the influence of tonality.[81] In that sense, they are perhaps one of the
most expressive elements and most deserving of protection. The device itself cannot be protectable: a
plaintiff could not say that his work was infringed by the mere presence of a
sequence in another's work. Nor could
the defendant exonerate his plagiarism simply by noting that the similarities
are contained in a sequence. Neither
side gains anything particularly useful by arguing the presence of these
devices.
Any number of compositional devices might lead to the
same unproductive arguments. Devices
overlap and intermingle with expressive elements.[82] Composers employ devices primarily as means
of development and prolongation. This
approach to the idea-expression dichotomy will not aid the trier of fact unless
the plaintiff asserts the clearly untenable position that the use of a similar
device without regard to its content is a substantial similarity. It is hard to imagine such a claim being
filed, much less surviving summary judgment.
Although the unprotectable nature of stylistic influences was argued in Chapter 7, style also s